ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002494

Complaints for Resolution:

Date of Adjudication Hearing: 21/10/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant is a barber and commenced his employment with the respondent hair salon on June 1st 2001. The complainant worked, incident free, for the respondent for approximately fifteen years and on April 2^nd 2016, he was informed by his employer that the salon would close that evening, would not reopen and that his employment was terminated with the company.

The respondent failed to meet any of its obligations in respect of the complainant’s employment rights.

In particular, he did not receive any notice of the closure, or payment in lieu of notice, payment of outstanding holiday entitlements or a redundancy payment. Following protracted negotiations between the parties’ legal representatives the complainant brought his complaints to the Workplace Relations Commission.

On finishing his shift on April 2^nd 2016 the complainant was approached by his employer and informed that his services would no longer be required by the company as the company would cease to trade on that day. Prior to this date, no indication had been given, by the respondent to the complainant, that the company was having financial difficulties or even that his position was at risk. Indeed, to date the company has not been wound up nor has a liquidator or receiver been appointed and its status remains registered as normal with the Companies Registration Office.

The complainant’s legal advisor engaged with the solicitor for the respondent and was informed by way of letter dated 4 April 2016 that the respondent had “ceased trading in circumstances that the business is not viable’.

Further, the respondent’s solicitor confirmed that the respondent did not have the “resources to pay the notice period…or statutory redundancy” and that the complainant would have to “make a claim to the insolvency fund” if the respondent could not be sold as a going concern, notwithstanding the fact that the respondent and its legal advisor were well aware that the complainant could not make any such application in circumstances where the respondent had no intention of legally winding up.

By letter dated 7 April 2016 (exhibited in evidence) the complainant’s legal representative requested that the respondent provide all necessary documentation in order that the complainant could make his application to the Insolvency Fund as the respondent claimed it could not pay him what he was due.

The respondent’s legal advisor did not respond to this communication and one of the directors of the respondent hand delivered the complainant’s P45 to his solicitors approximately one week later. This director did not meet with the complainant’s legal advisor at that juncture and failed to provide the necessary statutory documentation that had been promised in her legal advisor’s aforementioned letter of 4 April 2016.

The complainant’s legal advisor was obliged to write again to the respondent’s solicitors on 26 April 2016 to request the statutory documentation in order that he could make the necessary application to the Insolvency Fund. He received no response.

CA-00006174-001; Complaint under the Organisation of Working Time Act, 1997

The respondent failed to afford the complainant his holiday entitlements as required by section 19 of the 1997 Act or pay him in lieu of his entitlements upon the cessation of his employment pursuant to section 23 of the said Act. In this regard, by agreement with the respondent, the complainant carried over five days of annual leave from 2015 into 2016 because it had not been possible for him to take his annual leave due to lack of cover in the respondent’s shop.

Further, from January 1st 2016 to the date of his termination on April 2nd 2016 the complainant was unable to take any of either his carried over holidays from 2015 or holidays accruing for 2016 which also amounted to at least five full days.

Therefore at the time his employment was terminated the complainant was entitled to be paid for the equivalent of at least ten days for outstanding holidays.

The fact that the respondent at no stage offered to pay the complainant for his outstanding holiday entitlements nor even made reference to same demonstrates the utter failure of the respondent to recognise its obligations towards its employee pursuant to the 1997 Act. As such it is submitted that the respondent is in clear breach of the aforementioned sections and these serious breaches should be reflected in an award of compensation for infringement of rights.

Compensation of this nature is in addition to payment for the monies due to the complainant at the date of the cessation of the complainant’s employment and reliance is placed in this regard on the determination of the Labour Court in Baku GLS Limited v Vidmantas Mankauskas [DWT1678] wherein the court took a particularly grave view of the infringement of the right to holiday pay. Moreover this section 23 specifically states that an employer is liable for annual leave entitlements arising and accruing in the current and year prior to termination.

Finally, it should be noted that the respondent is also in breach of its obligation to keep records, pursuant to section 25 of the 1997 Act, or at all, and it is submitted that there is no defence upon which the respondent can rely in this regard. The complainant requests that in awarding compensation for the breaches of the 1997 Act the Adjudicator takes account of the requirement for the complainant to be afforded compensation which is proportionate, just and effective.

CA-00004810-001; Complaint under the Terms of Employment (Information) Act, 1994

At no stage over the course of the complainant’s tenure with the respondent did he ever receive a written statement of terms of employment as required by section 3 of the 1994 Act. Indeed, notwithstanding the complainant’s repeated requests for such a statement the respondent continued to refuse to furnish same.

The respondent has no reason for refusing to comply with section 3 and it is submitted that the complainant is entitled to be compensated accordingly for this long standing breach and reliance is placed on the recent cases from September 2016 of A Shop Assistant v A Retail Shop [ADJ-00001615] and A Chef v A Restaurant [ADJ-00002611] in that regard.

CA-00004810-003; Complaint under the Minimum Notice and Terms of Employment Act, 1973

The complainant commenced work with the respondent in 2001 and was terminated in 2016. Section 4(e) of the 1973 Act stipulates that an employee who has been in the continuous service of an employer for 15 years or more is entitled to not less than eight weeks notice of termination of his employment. In circumstances where the complainant was not afforded any actual notice and not compensated in lieu thereof, it is submitted that he is entitled to a payment the equivalent of 8 weeks wages pursuant to the 1973 Act in respect of his notice period.

Finally, the treatment of the complainant has caused him significant personal and financial hardship and, despite his fervent attempts, he was unemployed from 2 April 2016. He secured work one day per week from 13 May 2016 and has been employed full time from 5 August 2016 on a significantly lower gross wage than that he earned while in the employment of the respondent.

Respondent’s Submission and Presentation:

The Respondent did not attend the hearing

Findings and Conclusions

In the absence of any contest to the evidence of the complainant the facts of the matter are fairly clear. His employment was peremptorily terminated in circumstances where the business ceased trading.

He was a credible witness and according to his own direct evidence he was given no prior notice, in the general sense and no notice such as would comply with statutory requirements.

I therefore find that he was made redundant and did not receive his statutory notice entitlement. Likewise I find as a fact that he was owed annual leave and did not have a statement of his Terms of Employment.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint under Section 8 of the Unfair Dismissals Act, 1977 CA-00003675-001 was withdrawn at the hearing.

For the purpose of the following awards the complainant’s gross weekly wage is €707.00

I uphold complaint CA-00004810-001; under the Terms of Employment (Information) Act, 1994 and award him four weeks pay.

I uphold complaint CA-00004810-002 under Section 39 of the Redundancy Payments Act, 1967. I find the complainant was made redundant and award him redundancy payment at the statutory rate based on service from June 1^st 2001 until the date of the termination of his employment; April 2^nd 2016.

I uphold complaint CA-00004810-003; under the Minimum Notice and Terms of Employment Act, 1973 and award him, on the basis of the service outlined above eight weeks pay.

I uphold complaint CA-00006174-001 under the Organisation of Working Time Act, 1997 and award him ten days pay at the above rate for loss of annual leave entitlements. I further award him €750 for the breach of his rights under this Act, (which is therefore not liable to tax on the basis of Section 7 of the Finance Act 2004 and Revenue Commissioners Guidance Note IT71).

Dated:   6^th December 2016